Decision Date: 10/30/95 Archive Date:
10/31/95
DOCKET NO. 93-15 894 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to an increased evaluation for chronic lumbar
syndrome, postoperative lumbar laminectomy, with probable
mild L4-L5 radiculopathy, currently evaluated as 10 percent
disabling.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Daniel J. McTavish, Associate Counsel
INTRODUCTION
The veteran had active military service from July 1957 to
March 1977. This matter came before the Board of Veterans'
Appeals (Board) on appeal from a February 1994 rating
decision of the St. Petersburg, Florida Regional Office (RO)
of the Department of Veterans Affairs (VA), which
established service connection for the veteran's back
disorder and related symptomatology, specifically, chronic
lumbar syndrome, postoperative lumbar laminectomy with
probable mild L4-L5 radiculopathy. The RO granted a 10
percent evaluation for this disorder. The veteran has
continued his appeal for an increased evaluation, in excess
of 10 percent, for his service-connected back disorder.
In November 1994, the veteran's case was administratively
remanded to the RO pursuant to the veteran's request for a
personal hearing before a member of the Board at the RO.
The veteran subsequently withdrew his request for a hearing.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran essentially contends that he is entitled to a
rating in excess of 10 percent for his low back disorder.
He asserts that he experiences chronic back pain, and that
the pain radiates down into his left leg. He maintains that
his pain is aggravated by activities such as bending,
lifting, prolonged sitting, standing, or walking. He also
asserts that he experiences a feeling of numbness and
tingling in the left leg.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims
file. Based on its review of the relevant evidence in this
matter, and for the following reasons and bases, it is the
decision of the Board that the evidence supports the
veteran's claim for an evaluation of 20 percent for his
service-connected low back disorder.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appeal has been obtained by the RO.
2. The issue on appeal does not involve medical complexity
or controversy requiring an advisory opinion from an
independent medical expert.
3. The veteran's service-connected low back disorder is
currently manifested by complaints of constant pain with
radiation down the left leg with occasional feelings of
numbness and tingling in the left leg, exacerbation of pain
with physical activity, X-ray evidence of degenerative
arthritic changes and disc space narrowing of the lumbar
spine, and electromyographic findings of chronic L4-L5
radiculopathy on the left side; the symptoms represent
moderate low back impairment.
CONCLUSIONS OF LAW
l. An advisory opinion from an independent medical expert
is not warranted. 38 U.S.C.A. §§ 5107, 7109 (West 1991); 38
C.F.R. § 20.901(d) (1994).
2. The criteria for an evaluation of 20 percent, and no
more, for a low back disorder and related symptomatology
have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38
C.F.R. §§ 3.321, 4.40, and Part 4, Codes 5003, 5010, 5292,
5293, 5295 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board notes that the veteran's claim is well grounded
within the meaning of 38 U.S.C.A. § 5107 (West 1991). That
is, the Board find that he has submitted sufficient evidence
to justify a belief by a fair and impartial individual that
the claim is plausible. The Board is also satisfied that
all relevant facts have been properly developed. No further
assistance to the veteran is required to comply with the
duty to assist him mandated by 38 U.S.C.A. § 5107(a).
We note that the veteran has contended that a more complete
review of his medical records should be conducted to include
findings related to his left foot and leg as these findings
pertain to his service-connected back disorder. He further
contended that an independent medical examination was in
order to resolve conflicting medical findings. The Board
finds that a remand is unnecessary inasmuch as the veteran
underwent VA general medical and neurologic examinations as
recently as January and February 1993, respectively.
Moreover, the applicable criteria pertaining to independent
medical expert opinions provide as follows:
Independent medical expert opinions. When, in the judgment
of the Board, additional medical opinion is warranted by the
medical complexity or controversy involved in an appeal, the
Board may obtain an advisory medical opinion from one or
more medical experts who are not employees of the Department
of Veterans Affairs. Opinions will be secured, as requested
by the Chairman of the Board, from recognized medical
schools, universities, clinics, or medical institutions with
which arrangements for such opinions have been made by the
Secretary of Veterans Affairs.
38 C.F.R. § 20.901(d).
An independent medical examination is not deemed necessary
as the issues presented are not so complex or controversial
as to require such an opinion.
In evaluating the veteran's request for an increased
evaluation, it is essential to the evaluation that the
veteran's disability be viewed in relation to its entire
history, 38 C.F.R. § 4.1. Service connection for chronic
lumbar syndrome, postoperative lumbar laminectomy, with
probable mild L4-L5 radiculopathy has been in effect since a
February 1993 rating decision, assigning a 10 percent
evaluation to the veteran's disability effective from August
5, 1992. The rating was based primarily on the veteran's
service medical records and post service VA examinations.
Service medical records reveal that the veteran complained
of constant low back pain without radiation in July 1972.
The impression was low back strain. In August 1972 he
reported having numbness and paresthesia in the left leg.
Straight leg raising was positive for pain in the back. X-
rays revealed degenerative changes at L4-L5 and L5 - S1. It
was noted that the veteran was able to heel and toe walk
without difficulty and all reflexes were three plus and
symmetrical. There was no motor weakness. Later in August
1972, a laminectomy was performed and the spinal canal was
found to be almost totally occluded by total herniation of
the disc from the L4-L5 interspace. Following removal of
this disc, the nerve roots of L5 and S1 were free. He was
continued on limited duty. Thereafter, the veteran
continued to receive treatment on a regular basis for back
pain which radiated down his left leg. Diagnosis in October
1972 was herniated nucleus pulposus at L4-L5 on the left
with involvement of nerve roots L5 - S1. In May 1973, it
was noted that he experienced occasional back pain when
doing heavy lifting and still had absent ankle jerk on the
left. It was determined by a medical board that he was fit
to return to full duty. Separation examination in August
1975 noted the laminectomy by history and the veteran
reported recurrent back pain.
Post service VA examination in January 1993 revealed that
the veteran complained of chronic back pain which varied in
severity. He reported that his pain was aggravated by
activities such as bending, lifting, prolonged sitting,
standing or walking. He also noted that he experienced
occasional radiation of pain into the left thigh with an
occasional feeling of numbness and tingling in the left
lower leg. He also reported some weakness of the left leg.
Physical examination indicated that the veteran walked with
a slight limp and that the right leg appeared to be slightly
shorter than the left. Examination of the back revealed
that the veteran was able to stand erect and had a well-
healed surgical scar in the midline of the lower lumbar
region without definite spasm or tenderness. Range of
motion of the lumbar spine showed 65 degrees of flexion and
30 degrees of extension. There was mild discomfort on
extremes of motion. The veteran was unable to toe walk on
the left but was able to heel walk bilaterally. The
physician noted that the veteran was able to squat and arise
again, but appeared to bear most of his weight on the right
leg. X-ray of the lumbar spine showed degenerative disc
disease in the lumbosacral level and L4-L5 level with disc
space narrowing, and reactive marginal osteophytes. There
was mild left convex scoliosis of the lumbar spine. The
sacroiliac joints were well preserved. The impression was
moderate degenerative changes to low lumbar disc levels.
Neurologic examination in February 1993 revealed that the
veteran had a normal gait. It was noted that there was
slightly less strength in the left lower extremity compared
to the right and the deep tendon reflexes were positive 2/4
bilaterally except that only a trace was present at the left
ankle. Sensory examination to pinprick, light touch and
cold temperature was essentially the same but was somewhat
more apparent on the left foot compared to the right. An
electromyogram and nerve conduction study confirmed there
were some mild denervation changes in the left lower
extremity and findings which suggested a chronic L4-L5
radiculopathy on the left side.
Although regulations require that, in evaluating a given
disability, the disability be viewed in relation to its
whole recorded history, 38 C.F.R. §§ 4.1, 4.2, the present
level of disability is of primary concern. Francisco v.
Brown, 7 Vet.App. 55 (1994). In evaluating the veteran's
claim, all regulations which are potentially applicable
through assertions and issues raised in the record have been
considered, as required by Schafrath v. Derwinski, 1
Vet.App. 589 (1991).
In general, disability evaluations are assigned by applying
a schedule of ratings which represent, as far as can
practicably be determined, the average impairment of earning
capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4.
When there is a question as to which of two evaluations
should be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating; otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (1994).
The VA's Schedule for Rating Disabilities (Rating Schedule)
provides that arthritis due to trauma, substantiated by X-
ray findings, is rated as degenerative arthritis under Code
5003. 38 C.F.R. Part 4, Code 5010. Limitation of motion
must be objectively confirmed by findings such as swelling,
muscle spasm, or satisfactory evidence of painful motion.
38 C.F.R. Part 4, Code 5003.
The veteran's chronic lumbar syndrome, postoperative lumbar
laminectomy, with mild L4-L5 radiculopathy is currently
rated at 10 percent, for mild intervertebral disc syndrome,
under the criteria of 38 C.F.R. Part 4, Code 5293 (1994). A
20 percent rating requires evidence of moderate disability
with recurring attacks. If there is evidence of severe
disability with recurrent attacks, with intermittent relief,
a 40 percent rating is in order. The assignment of a 60
percent rating is warranted where the condition is
pronounced, with persistent symptoms compatible with sciatic
neuropathy with characteristic pain and demonstrable muscle
spasm, absent ankle jerk, or other neurological findings
appropriate to site of diseased disc, with little
intermittent relief. 38 C.F.R. Part 4, Code 5293.
Slight limitation of motion of the lumbar segment of the
spine warrants a 10 percent evaluation. Moderate limitation
of motion warrants a 20 percent evaluation. A 40 percent
evaluation requires severe limitation of motion. 38 C.F.R.
Part 4, Code 5292. Under Code 5295 of the Rating Schedule,
a 20 percent rating, the next higher evaluation, in this
case, requires evidence of muscle spasm on extreme forward
bending, loss of lateral spine motion, unilateral, in
standing position. 38 C.F.R. Part 4, Code 5295.
The reports of the veteran's January and February 1993
general medical and neurologic examinations reflect a
moderate degree of impairment of the low back with recurring
attacks. The evidence shows that the veteran has chronic
pain which is aggravated by physical activities, with
radiation of pain into his left leg. Range of motion was
limited to 65 degrees of flexion and 30 degrees of extension
with pain on extremes of motion. He was unable to toe walk
on the left. Furthermore, X-ray evidence revealed moderate
degenerative changes of the lumbar spine and
electromyographic findings suggested mild denervation change
in the left leg with chronic L4-L5 radiculopathy on the left
side. In conclusion, the service-connected low back
disorder and related symptomatology is productive of
moderate impairment, thus warranting assignment of a 20
percent rating.
The evidence of record does not demonstrate severe
limitation of motion of the lumbar spine, severe impairment
of the back with recurring attacks, with intermittent
relief, or with listing of the whole spine to the opposite
side, positive Goldthwait's sign, marked limitation of
forward bending in standing position, loss of lateral motion
with osteoarthritic changes, or narrowing or irregularity of
joint space, or some of the above with abnormal mobility on
forced motion, to warrant a 40 percent evaluation under 38
C.F.R. Part 4, Codes 5292, 5293, 5295 (1994).
This case does not otherwise present such an exceptional or
unusual disability picture as to render impractical the
application of the regular schedular standards. 38 C.F.R. §
3.321 (1994). For example, the disability does not recently
require frequent periods of hospitalization, or medical
treatment, nor does it present marked interference with the
veteran's daily activities that has not already been
contemplated by the current evaluation. Moreover, the Board
recognizes that the veteran experiences pain; however, the
assigned rating of 20 percent takes into consideration the
pain experienced by him, along with the objective findings,
including those findings involving his left leg, as set
forth above. 38 C.F.R. § 4.40.
ORDER
An increased evaluation of 20 percent for the veteran's
service-connected chronic lumbar syndrome, postoperative
lumbar laminectomy, with mild
L4-L5 radiculopathy is allowed, subject to the law and
regulations governing the payment of monetary benefits.
I. S. SHERMAN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.
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